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United States v. Allen

May 25, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
WILLIAM ALLEN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 CR 238-Charles P. Kocoras, Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge.

ARGUED APRIL 5, 2010

Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.

William Allen appeals his conviction for advertising, transporting, and possessing child pornography in violation of 18 U.S.C. §§ 2251(d)(1)(A), 2252A(a)(1), and 2252A(a)(5)(B). He claims that the district court erred by denying his for-cause challenge to a prospective juror and by admitting into evidence portions of a chat log where he claimed to have committed other crimes. We have reviewed the district court's rulings for an abuse of discretion. Finding no prejudicial error, we affirm.

I. BACKGROUND

Undercover FBI agent Kenneth Jensen logged into a chatroom and observed an advertisement for a file server, operated by someone calling himself "kidbot," that allowed people to trade child pornography with kidbot. Agent Jensen connected to kidbot's server, uploaded what was supposed to be an image of child pornography so that he could gain credit to download, and proceeded to download forty-two files before getting cut off, ostensibly because the image he had uploaded for credit was from the Hubble telescope, not child pornography. Three of the files he downloaded from kidbot showed a pre-pubescent girl engaging in sexual activity with an adult male.

Agents executed a warrant to search the home of William Allen's mother, the AT&T subscriber to whom kidbot's Internet Protocol address had been dynamically registered. They found Allen, who was twenty-one years old and living with his mother and siblings, alone in his bedroom with a desktop computer and other storage devices containing more than one thousand images of child pornography. They also discovered a log file on the desktop identifying the desktop as the file server to which Agent Jensen had connected, and chat logs where someone identifying himself as "William" and as a "21-year old male from Illinois" described how he used computers and chatrooms to trade child pornography. In another chat log the agents discovered, Allen claimed to have molested minor children.

Allen was indicted for advertising, transporting, and possessing child pornography. During jury selection, prospective jurors completed a written questionnaire before appearing in court. The questionnaire asked whether anything would make it difficult for a prospective juror to be fair, to which one prospective juror replied "yes" because of an incident in which a man had attempted to kidnap her then six-year-old, now grown daughter. The judge then asked the prospective juror personally whether "that experience would somehow prejudice you against the defendant in this case?" The prospective juror replied, "Yes." App. A-3 at 139.

The judge then instructed her that "both sides are entitled to fairness and, actually, a clean slate in your mind, so that whatever exists in your past does not carry over and influence the decision in this case," and asked her once more whether she could be open-minded, perhaps set the experience aside, and give Allen the presumption of innocence. She replied that she could. App. A-3 at 140.

The judge then allowed Allen's attorney to perform follow-up questioning. He brought up the questionnaire and again asked the prospective juror whether "the nature of the charges alone would make it difficult for you to be fair to both parties." Again, she replied, "Yes," indicating that she didn't know whether she would start the case by giving Allen the presumption of innocence. App. A-3 at 141-42.

The judge again instructed her, "There is not anything wrong with having an impact, but it is whether, just the nature of the charges, you find so offensive that you will not give the guy the benefit of the doubt?" She replied, "I would give him the benefit of the doubt until everything is presented, yes." She was questioned no further. App. A-3 at 142.

Allen had used all of his peremptory challenges so he objected that the prospective juror should be stricken for cause. The judge disagreed and allowed her to be seated as the twelfth member of the jury.

The jury found Allen guilty and the district court sentenced him to thirty years in prison. Allen does not argue that thirty years in prison for a twenty-one-year-old first-time offender who never left his mother's home is constitutionally excessive. Cf. Graham v. Florida, No. 08-7412 (U.S. May 17, 2010) (vacating a term-of-years sentence as categorically unconstitutional); Solem v. Helm, 463 U.S. 277 (1983) (vacating a term-of-years sentence because it was unconstitutional as applied to the facts of the case). Rather, he limits his appeal to the district ...


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